SUJIR GANESH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ appeal arises from the judgment of the learned single Judge dismissing O. P. No. 5298 of 1989 on the file of this Court. In the said writ petition the appellant-writ petitioner has challenged the levy of penalty under section 45a of the Kerala General Sales Tax Act, 1963 (for short "the Act") for the assessment year 1984-85. By exhibit P5 order the Board of Revenue upheld the levy of penalty fixed by the second respondent, Deputy Commissioner in the revision petition and that order was under challenge in the writ petition disposed of by the learned single Judge on March 15, 1993.

(2.) THE main question to be decided in this appeal is whether the ingredients of the provisions contained in section 45a are attracted in this case so as to levy of penalty on the petitioner as prescribed therein. THE portion of the said section which is relevant for the present purpose is extracted hereunder : " 45a. Imposition of penalty by officers and authorities.- (1) If the assessing authority or the Appellate Assistant Commissioner is satisfied that any person, - . . . . . . . . . (d) has submitted any untrue or incorrect return; or . . . . . . . . . such authority or officer may direct that such person shall pay, by way of penalty, an amount not exceeding twice the amount of sales tax or other amount evaded or sought to be evaded where it is practicable to quantify the evasion or an amount not exceeding five thousand rupees in any other case. "

(3.) IN this writ appeal, with great respect we agree with the findings entered by the learned single Judge. IN this case we see any reason for the assessee to contend that the penalty levied is in any way disproportionate to the offence alleged. Such contention was not advanced before the learned single Judge. We feel, this is not a fit case where doctrine of "proportionality" or "wednesbury" principle can be applied for fixing the quantum of penalty because there was deliberate and systematic defrauding of revenue from the beginning of the assessment year itself. IN this case it is not possible to argue that there was no fraudulent intention to evade the payment of tax. A cursory glance at the provision contained in section 5 (3) would reveal that this is a case where no exemption is available. No argument or discussion is found necessary to understand non-applicability of this provision in the facts of the present case. If there is an "arguable point" we would have definitely applied the rule laid down by the Supreme Court in Cement Marketing Company's case [1980] 45 STC 197. What we see here is only "a 'frivolous' contention taken up merely for the purpose of avoiding the liability to pay the tax".